Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 5th March 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I have the misfortune to oppose these amendments and to take a different view, therefore, from that already indicated by earlier speakers. I welcome the general thrust of Clause 14.

It is hardly surprising that the Government are intent on clarifying as plainly as possible in primary legislation their policy with regard to Article 8 and the interests that Article 8 furthers. Initially they sought to do this by way of changes to the Immigration Rules back in June 2012 but the courts then said, correctly, in the judgment of the Upper Tribunal in a case called Izuazu:

“Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision”.

A little later the judgment quoted from a recognised work on constitutional and administrative law, as follows:

“An Act of Parliament has legal force which the courts are not willing to ascribe to other instruments which for one reason or another fall short of that pre-eminent status”.

It is not that the rules are vulnerable to legal challenge. As the noble Lord, Lord Pannick, rightly said, in a recent case the Master of the Rolls made it plain that the rules, for what they are worth, are perfectly lawful. But it is in these circumstances that the Government—to my mind, unsurprisingly—have chosen to translate their policy into primary legislation. Indeed, the Minister made this plain in his response to an earlier group of amendments.

In the past, courts have rather too often tended to thwart the attempts of the Government to control immigration and deport foreign criminals on the basis of Article 8 interests. On occasion, they have carried the reach of this article beyond even the lengths to which the Strasbourg court itself has gone, and that court is no mean exponent of the art of dynamic and creative interpretation of the convention. Indeed, I said as much in a dissenting judgment I gave in 2011 in the Supreme Court in a case called Aguilar Quila. In that case, in reliance on Article 8, my colleagues struck down as not proportionate to Article 8 interests an immigration rule designed to combat the evil of forced marriages. I concluded there that:

“Article 8 is a difficult provision which has already led to some highly contentious, not to say debateable, decisions. Upon that I am sure we would all agree. In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases”.

I do not say that the deportation even of foreign criminals is as sensitive a matter as preventing forced marriage but, undoubtedly, it is one that gives rise to wide public concern.

I am strongly in favour of the United Kingdom remaining fully committed to the European Convention on Human Rights—and the Human Rights Act, which gives effect to it domestically. However, I can think of nothing more calculated to induce government to conclude that the nation’s better interests may in fact be served by abandoning our convention commitments than the continual frustration of government policy by an overenthusiastic interpretation and application of the convention, not least Article 8.

The amendments proposed here, particularly those of my noble and learned friend Lord Hope, for whom I have the utmost respect, and my noble friend Lord Pannick, eliminate from the face of the provision the relevance of foreign prospective deportees, and criminals in particular, having been here unlawfully or with only a precarious immigration status when their private lives or relationships were established. The Joint Committee’s recent report very helpfully looked afresh at this provision. Even it did not suggest that these were irrelevant considerations. On the contrary, the particular amendments that the committee proposed at paragraph 111—not, if I may say so, that anybody has yet explicitly adopted them—recognise and acknowledge the relevance of these sorts of consideration. Logically it would follow in the specified circumstances when someone is here unlawfully or under a precarious immigration status that the court would give less weight to whatever private life and relationship interests they have managed to build up. Why therefore not say so? That is precisely what Clause 14 now does. I do not see any distinction—certainly no critical one—between giving interests built up “little weight” and giving them less weight.

Judges will continue to honour their oaths to decide cases independently and objectively. Their entitlement to do so is by no means removed by this clause. In so far as in any particular case the judge considers that absolute Article 8 obligations require that there be no removal of the person concerned, there is nothing in this legislation to drive a contrary decision. Judges can give effect—indeed are duty bound to do so—to that conclusion as to the requirements of Article 8. However, government are entitled—it is what they are doing here in primary legislation as plainly as may be—to set out what their policy is and what they regard as the critical considerations in play in these cases. In short, I see much to be said in favour of this clause and nothing substantial to be said against it.

A final word just on children: clearly the best interests of all children, not just qualifying children, remain a primary consideration in all cases. Qualifying children are a particular concept introduced in respect of the removal of foreign criminals. Surely it is not difficult to see why their situation is singled out for particular special treatment. I am agnostic and neutral on whether that consideration should be spelt out not only under Section 55 of the 2009 Act giving effect to the interests of all children under our international convention obligations but also in this particular provision. It may not be thought necessary but if it is, so be it. However, I support the clause as a whole.

[Baroness Smith of Basildon]

My Lords, as a non-lawyer, I always take some comfort when the lawyers disagree on an issue. I have already stated our position on Article 8. We consider it right for Parliament to set out how the qualified rights of Article 8—the right to private and family life—should be balanced. However, as I think I indicated previously, we share those concerns that some decisions have been taken where we would ask whether the qualifications to Article 8 had also been appropriately considered when assessing the right to private and family life. I would disagree with the noble Lord, Lord Pannick, on that point.

However, I share his anxieties about some of the rhetoric around this debate. I recall the Home Secretary telling the Conservative Party conference that one individual had had his leave to remain granted on the basis of his private life and his family relationship with his cat. That proved to be absolute nonsense and unfair. There is a duty on all of us when discussing this issue to be measured and fair and to ensure that our facts are correct on all occasions.

I would like to probe a couple of areas with the noble and learned Lord. This may be the first debate on this where equal numbers of lawyers and non-lawyers have taken part. The noble Lord, Lord Pannick, and my noble friend Lady Lister made points about the language of the clause. The Government raised the issue of the interpretation of the legislation. However, I do not know whether any other legislation uses the term or gives advice that “little weight” should be given. If there are problems about “little weight” in terms of definition, will there be any clarification from the Government around interpretation for those taking these decisions? We are introducing a concept that could create the same problems around interpretation. It is appropriate that Parliament should state for the benefit of judges how we expect the interpretation to take place if the language is not familiar to them. That appears to be a problem in such cases at present.

Marriage (Same Sex Couples) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Alli]

I will repeat my offer. I am really happy to work with the right reverend Prelate the Bishop of Hereford, or the right reverend Prelate the Bishop of Leicester. If a conscientious clause to allow registrars to opt out in civil marriage is so important, I will work with him to craft a similar clause to allow registrars in the Church of England to opt in. Conscience is not a one-way street. It goes both ways. If you want to opt out, we must come back and question why we cannot opt in. It is about more than just one conscience. We all have a conscience and mine tells me that this amendment is wrong in principle.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, confess to having some sympathy with the amendment, particularly as diluted by the noble and learned Baroness, Lady Butler-Sloss. However, I hasten to add, I do not have enough sympathy actually to support it. It would represent the thin end of a dangerous wedge and set a troubling precedent. I recognise of course that there are some limited exceptions to the obligations on doctors and certain others but I think that, without exception, they relate to cases where there is some physical relationship between the person being exempted from a public duty and somebody else.

The closer analogy is perhaps with incumbent judges. It has never been suggested that judges should be free on grounds of conscientious objection to refuse to take certain cases. Proposed subsection (3) in the amendment refers to “religious or other belief”. Suppose that a judge strongly objects to indeterminate sentences, whole-life tariffs, automatic sentences, rules such as “two, three strikes and you’re out” or, in days past, to divorcing people. Catholic judges were from time to time, as the noble and learned Baroness will confirm, obliged to pronounce in divorce cases. Indeed, those of us who sat here as Law Lords, and then across the square as Supreme Court judges, routinely as part of our duties sat on Privy Council appeals. From time to time we would be confronted with final appeals, often from the Caribbean, in capital cases. Is it suggested that it would have been open to a member of the court to decline to take such a case on the grounds of a religious or other strongly held belief?

Very simply, public servants should almost without exception—save in these physical relationship cases—serve the public according to the law as democratically enacted. They should not seek to shed what they regard as their less palatable duties on to long-suffering colleagues.

[Lord Anderson of Swansea]

Am I correct in saying that it is not a question of a judge declining to sit on a particular case? If a judge had a particularly well founded objection in principle, and that was well known, it is likely that the case would not in fact be allocated to him.

[Lord Brown of Eaton-under-Heywood]

I do not believe that to be so.

[Lord Mackay of Clashfern]

I am not so sure about that. Those who arranged the judicial calendar did have some regard to questions of that sort when there were a number of judges to be allocated.

I want to draw attention to the facts found in the Ladele case about certain local authorities. It was found practical, in some local authorities, to respect the conscientious objection of particular registrars. If it is possible to do that and still provide the service, it seems to me that the provisions of the European Convention on Human Rights apply in respect to religious belief. As I understand it, people’s religious beliefs are to be given effect except when they conflict with the rights and obligations of others. Where a local authority was able to make that kind of adjustment it was perfectly reasonable for it to do so, and that is what it did. I think this clause as proposed is intended to do that.

I agree that it may be wise to restrict it to those who are already registrars, as the changes to the law affect their situation. However, the idea that it should be ruled out altogether because you could object on other grounds strikes me as not a particularly attractive argument. I remember having a discussion about this very sort of thing with the noble Baronesses on the Front Bench when the Equality Act 2010 was a Bill. I did not get any further with them then than I am likely to now.

Justice and Security Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 26th March 2013 Lords Chamber

[Baroness Ramsay of Cartvale]

My Lords, I will address Amendments 6A and 6B and the consequential Amendments 16A, 16B and 16C. I will not repeat all the arguments made by the Minister, but I agree with them. Like the noble and learned Lord, Lord Lloyd of Berwick, I cannot accept Amendment 6A or Amendment 6B. As a non-lawyer, when I read Amendment 6A I interpreted it exactly as the Minister feared the court would be forced to interpret it: that it would have to try every other possible method before it came to the CMP.

I hope that the noble Lord, Lord Macdonald of River Glaven, will forgive me for saying that when I read Amendment 6B I wondered if he meant it to be a wrecking amendment. When I heard him explain it he seemed to confirm that suspicion. He is arguing against the whole concept of CMP. Why are we here? We are not here because we want to go into this kind of judicial arrangement but because we have got a big problem on our hands. The previous Government had it and this Government have now got it. People are going into the civil courts and suing officers of the intelligence and security services, accusing them—rightly or wrongly—of doing terrible things such as being implicitly involved in torture and extradition. The services cannot defend themselves because they cannot put material into a court.

There has to be a solution and the solution is not PII, as some people seem to think. I would also like to quote the noble and learned Lord, Lord Woolf—if he will forgive me because he is in his place—not from the excellent letter quoted by the Minister, but from what he said in a debate on this issue in this House on 11 July last year. He said:

“I should also make it clear that I think that the noble Lord, Lord Carlile”—

who had just spoken ahead of him—

“is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides”—

both sides—

“if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure”.—[Official Report, 11/07/12; col. 1189]

I very much agree with that.

The amendments that I have mentioned do not improve the Bill in any way. In fact, they are to the detriment of the Bill. This is a problem which the previous Government had to wrestle with, the present Government are having to wrestle with and the House has to wrestle with it. Now that they have included the latest Commons amendment, the Government have made a very good attempt at trying to square what we all want, which is a fair trial. That must include, in the civil court, members of the security and intelligence services so they can bring a defence to accusations against them.

[Lord Brown of Eaton-under-Heywood]

My Lords, in rising to support this Bill I confess to a particular interest in the legislation. Many years ago—although not quite as long ago as the noble and learned Lord, Lord Woolf—as Treasury Counsel I was required to advise and act for the Government in national security, public interest immunity cases. For six years after the passage of the Regulation of Investigatory Powers Act 2000, I was the Intelligence Services Commissioner responsible for retrospective judicial oversight over the various intelligence agencies. For considerably more years than that, I have been involved, as a member of the court, in most of the national security cases that came before us, including the control order cases and the expulsion cases like that which sought to return Abu Qatada to Jordan, on which the litigation still continues. The Al Rawi case relating to Guantanamo Bay, although it was settled before it came to us, came on the issue of principle which was whether, as a matter of common law, the courts could order a closed material procedure. The majority of us held not. We held that only Parliament could sanction so fundamental a departure from the principle of open justice. Hence Clause 6 is now before us.

Succession to the Crown Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 13th March 2013 Lords Chamber

[Lord Lexden]

My Lords, I support this amendment very strongly. Briefly, my points follow closely those of my noble friend Lord True. By extending from six to 12, the measure would reinforce the sense of family and the obligations that go with it. These are especially important where the Royal Family is concerned. In giving approval for the marriages of his or her blood relatives, the monarch can surely expect to bind them more closely to the Crown and the public duties that it imposes. For that purpose, it is surely appropriate to have 12 blood relatives in this category, rather than six.

Bagehot, the great Victorian constitutionalist, laid great stress on the benefit that Britain derived from a Royal Family of significant size which, under Queen Victoria, inspired great respect, following the disreputable family of George III. I suggest that to maintain and strengthen that tradition, it would be right to increase to 12 the number in the line of succession who would need to seek the approval of the monarch.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, support this amendment. Twelve seems to me an eminently sensible and, indeed, a hallowed number. There were 12 tribes of Israel, 12 apostles, 12 members of the jury and there used to be 12 pence in the shilling. Perhaps more importantly, one asks: what is the downside of 12? If those who are ranked seven to 12 do not rate their chances of succession, or if perhaps they do not want to succeed, their remedy is perfectly simple: they do not ask Her Majesty for consent and the statute automatically then disqualifies them. It is only Her Majesty who might suffer the problem of having to consent—if consent is sought—to so many more marriages and I am sure she would not mind.

[Lord Cormack]

My Lords, I strongly support my noble friend. He made a splendid speech in Committee and again this afternoon. Any amendment that can unite my noble friend Lord Deben and me deserves the support of the House. I hope that the Minister will not attempt to resist it and will heed the sensible words of my noble friend Lord Deben. What is the point of resisting? This is not a point of principle, but of practicality. To have 12 builds in an extra safeguard and rules out the possibility of a different sort of ambiguity, to which the right reverend Prelate referred in his earlier admirable speech. No one has spoken against this amendment. I am sure the Minister will incur not only the admiration and good will of the House, but the admiration of those outside who are following these proceedings. If by chance my noble friend does not feel able to accept the amendment, I hope that my noble friend Lord Lang will press it.